Chandigarh

StateCommission

A/44/2023

ADITI JOSEPH - Complainant(s)

Versus

STAT BANK OF INDIA - Opp.Party(s)

DEVINDER KUMAR

31 Oct 2023

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Appeal No.	:	44 of 2023
Date of Institution	:	20.03.2023
Date of Decision	:	31.10.2023

 

Aditi Joseph w/o Dr. Sumit Joseph, permanent r/o H. No.49, Shivalik Vihar, Nayagaon, Tehsil Kharar, District Mohali presently residing at Brampton Canada through her Special Power of Attorney Holder Sh. Joseph K. Masih, H. No.49, Shivalik Vihar, Nayagaon, Tehsil Kharar, District Mohali.

 

……Appellant/Complainant.

V e r s u s

State Bank of India, SCO No.13, Sector 20-D, Chandigarh through its Branch Manager.

…..Respondent/Opposite Party

 

BEFORE:    JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT.

                   MR. RAJESH K. ARYA, MEMBER.

                  

Argued by:-

 

Sh. Devinder Kumar, Advocate for the appellant alongwith Sh. Joseph K. Masih, SPA Holder of the appellant.

Sh. J. K. Babbar, Advocate  for the respondent.  

 

JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

 

                    Consumer complaint No.258 of 2019 was filed by Smt. Aditi Joseph through her Special Power of Attorney holder Sh. Joseph K. Masih before the learned District Consumer Disputes Redressal Commission-II, U.T., Chandigarh (in short ‘the District Commission) on 29.04.2019. It remained pending for about four years and ultimately, the same has been dismissed by the District Commission vide order dated 10.02.2023 on the basis of Special Power of Attorney dated 10.06.2013, Annexure C-10, on the ground that Sh. Joseph K. Masih is not competent and authorized person to file the complaint.

2]                We have heard the counsel for the parties and have gone through the record of the case carefully.

3]                In Para 1 of the complaint, it has been specifically mentioned that Dr. Joseph K. Masih  is the Special Attorney and filed the present complaint as Ms. Aditi Joseph is staying in Canada.

4]                In its reply in Para 1 of preliminary objections, the opposite party (respondent herein) has taken a specific plea as under:-

“1.     That the present complaint is not maintainable as the Complaint has been filed by the SPA holder of Ms. Joseph wife of Dr. Sumit Joseph namely Dr. Joseph K. Masih who is father in law of Ms. Aditi Joseph, but no copy of any SPA executed by Ms. Aditi Joseph in favour of Dr. Sumit Joseph has been attached with the complaint. The fact regarding being still alive of the Executant of the SPA in question has also not been mentioned anywhere in the whole complaint. On account of non-filing of the SPA in question with the complaint, it cannot be made clear that either the necessary powers for filing the present complaint in favour of the SPA holder has been given by the Executant or not and whether the SPA is validly executed or not in terms of law. Moreover, in the title of the complaint Mrs. Aditi Joseph has been impleaded as a Complainant but there is no mention of filing of the present complaint through her SPA holder in the memo of parties/title of the complaint. As such, the present complaint is liable to be dismissed on this ground alone.”

5]                A copy of Special Power of Attorney, Annexure C-10, placed on record is notarized by Notary Public at Chandigarh on 10.06.2013. So far as validity of this Special Power of Attorney is concerned, the respondent/opposite party has failed to establish that it is not an authenticated document.

6]                Under Section 85 of The Indian Evidence Act, 1872, there is a presumption regarding execution & authentication of a power-of-attorney. This Section reads as under:-

“85. Presumption as to powers-of-attorney.- The Court shall presume that every document purporting to be a power-of-attorney, and to have been executed before, and authenticated by, a Notary Public, or any Court, Judge, Magistrate, ²[Indian] Consul or Vice-Consul, or representative ³[***] of the ⁴[Central Government], was so executed and authenticated.”

7]                In fact, Smt. Aditi Joseph, while in India, purchased a vehicle by taking loan from the respondent-Bank. In the Special Power of Attorney, Annexure C-10, Dr. Joseph K. Masih has been authorized to sell the vehicle and also to get it transferred or obtain NOC for transfer of the said vehicle in the name of the purchaser with the concerned registration authority. He has further been authorized to deal with the Financer State Bank of Patiala for all purposes and get NOC. This Commission would like to reproduce Paras 4 & 5 of the Special Power of Attorney as under:-

“4.     Dr. Joseph K. Masih is also authorized to deal with Financer State Bank of Patiala Chandigarh for all purposes and get NOC and for that purpose if legal remedy is needed he is authorized to take that course as well.

5.       He also authorized to pursue any court case arising out of challan or accident or any other legal case arising in relation to above referred motor vehicles. He can appoint legal attorney or any other person as the case may be to deal with such cases.”

8]                It may be stated here that the procedure before the Consumer Fora is of summary in nature. The authenticity of Special Power of Attorney, Annexure C-10, is well established and the respondent/opposite party has failed to disprove the same. In this view of the matter, we are of the view that Dr. Joseph K. Masih was authorized to file the consumer complaint. As such, the impugned order is not sustainable in the eyes of law and is liable to be set aside.

9]                For the reasons recorded above, this appeal is accepted. The impugned order is set aside and reversed. However, the complaint is remanded to District Commission-II, U.T., Chandigarh with the direction to decide the same on merits as early as possible, preferably within a period of 30 days from the date for appearance of the parties, now to be given by this Commission.

10]              Parties are directed to appear before District Commission-II, U.T., Chandigarh on 21.11.2023.

11]              Complete record alongwith certified copy of this order be sent to District Commission-II, U.T., Chandigarh forthwith so as to reach there well before the date fixed.

12]              Certified copies of this order be sent to the parties free of charge.

13]              Copy of this order be also sent to the parties/counsel through email/whatsapp.

14]              File be consigned to the Record Room after completion. 

Pronounced.

31.10.2023.

 

[RAJ SHEKHAR ATTRI]

PRESIDENT

 

 

 

 

 (RAJESH  K. ARYA)

MEMBER

 

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